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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ArcelorMittal (Société Anonyme) v. Agnes Lumbay

Case No. D2021-0634

1. The Parties

The Complainant is ArcelorMittal (Société Anonyme), Luxembourg, represented by CSC Digital Brand Services Group AB, Sweden.

The Respondent is Agnes Lumbay, Nigeria.

2. The Domain Name and Registrar

The disputed domain name <arcelonmital.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 4, 2021. On March 4, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 5, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 11, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 31, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 16, 2021.

The Center appointed Nels Lippert as the sole panelist in this matter on April 29, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The Complainant is a Société Anonyme formed in 2006 through the merger of Arcelor and Mittal Steel Technologies and is headquartered in Luxembourg. The Complainant is a large steel producer, manufacturing steel in 18 countries around the world and employs over 191,000 employees globally.

The Complainant has registered the trademark ARCELORMITTAL in various jurisdictions in International Classes, 6, 7, 9, 12, 19, 21, 39, 40, 41, and 42, such as, International Registration Number 947686 registered on August 3, 2007, Benelux Registration Number 0824918 registered on June 18, 2007, Benelux Registration Number 0827145 registered on July 25, 2007, Australian Registration Number 1282928 registered on July 9, 2009 and Canadian Registration Number TMA783952 registered on February 12, 2010. Furthermore, the Complainant has a large Internet presence and shares information about its products, services, and news on its website at the domain name <arcelormittal.com>.

The disputed domain name was registered on February 5, 2021. The disputed domain name currently resolves to an inactive site. The Complainant provided evidence that the disputed domain name has been used in connection to a fraudulent email scheme impersonating the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that the disputed domain name is confusingly similar to the Complainant’s trademark because it varies from the Complainant’s trademark by just two letters – replacement of the letter “r” with the letter “n” and omitting the repeated letter “t” in the Complainant’s ARCELORMITTAL mark. The Complainant contends this is a classic example of typosquatting which does not avoid confusing similarity and is designed to misdirect Internet users who make a typographical error when entering the disputed domain name. In this regard, the Complainant asserts that the disputed domain name must be considered confusingly similar to the Complainants ARCELORLMITTAL trademark because it is similar in both sight and sound.

The Complainant contends the Respondent has no rights or legitimate interests in respect of the disputed domain name because the Respondent is not sponsored by or affiliated with the Complainant in any way, and the Complainant has not given the Respondent permission to use the Complainant’s trademark in any manner. Furthermore, the Complainant asserts that it has not licensed, authorized, or permitted the Respondent to register domain names incorporating the Complainant’s trademark. Moreover, the Complainant notes that the Respondent is not commonly known by the disputed domain name.

The Complainant further asserts that the Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services because it was used for the purpose of sending emails impersonating one of the Complainant’s employees seeking to redirect payments to an account presumably owned by the Respondent. Thus, the Complainant asserts the disputed domain name has been used as part of a fraudulent phishing scheme.

The Complainant also contends the Respondent is otherwise using the disputed domain name to redirect Internet users to a website that resolves to a blank page which lacks content. The Complainant argues that this failure to make legitimate use of the website evinces a lack of rights or legitimate interests in the disputed domain name.

The Complainant alleges the disputed domain name was registered and is being used in bad faith because the Respondent knew or should have known of the existence of the Complainant’s trademark at the time of registration of the disputed domain name and created the disputed domain name, which consists of a two-letter misspelling of the Complainant’s well-known trademark, to engage in a phishing scheme. Furthermore, the Complainant asserts that the disputed domain name is currently being used in bad faith because it resolves to an inactive website which constitutes bad faith passive holding. Finally, the Complainant asserts the Respondent is engaging in a pattern of registering domain names that misappropriates well-known trademarks which further demonstrates bad faith registration and use of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) the respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

A. Identical or Confusingly Similar

In this case, the disputed domain name is an obvious misspelling of the Complainant’s ARCELORMITTAL trademark. As noted in section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. In this case, the replacement of the second “r” with the letter “n” and deletion of the second “t” of the Complainant’s mark in the disputed domain name is a classic example of typosquatting, which does not dispel the confusing similarity between the Complainant’s mark and the disputed domain name. ArcelorMittal (Société Anonyme) v. WhoisGuard Protected, WhoisGuard, Inc. / Matt Calton, WIPO Case No. D2020-3112. Furthermore, it is well established that the applicable Top Level Domain (“TLD”) in a domain name is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. WIPO Overview 3.0, section 1.11. Therefore, the disputed domain name is confusingly similar to the Complainant’s ARCELORMITTAL trademark.

The Panel finds the requirement of paragraph 4(a)(i) of the Policy is satisfied.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondent may establish rights or legitimate interests in the domain name, by demonstrating any of the following:

(i) before any notice to it of the dispute, the Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the Respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant in this proceeding has demonstrated trademark rights and a lack of permission to use the Complainant’s mark in the disputed domain name. The Complainant contends that none of the circumstances under paragraph 4(c) of the Policy would apply in this case. The Respondent has not advanced rights or legitimate interests to rebut the Complainant’s prima facie case, and none are evident from the record or the use of the disputed domain name.

The Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

In this case, the Complainant has submitted compelling evidence that the disputed domain name was registered and is being used in bad faith. The disputed domain name was registered by the Respondent many years after the Complainant’s ARCELORMITTAL mark was registered in numerous countries. As noted in WIPO Overview 3.0, section 1.9, UDRP panels will normally find that employing typosquatting, as found here, signals an intention of the part of the Respondent to confuse users seeking or expecting the Complainant. UDRP panels have consistently found that the mere registration of a domain name comprising typos to a widely known or famous trademark can itself create a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4.

Furthermore, the Complainant has established that the Respondent registered and was using the disputed domain name to engage in an fraudulent phishing scheme. Because the Respondent used the disputed domain name in furtherance of a phishing scheme it illustrates that the Respondent knew of the Complainant at the time of registration and had a bad faith intent to use the disputed domain name for purposes of soliciting fraudulent payments. Konecranes, Inc. v. James White, WIPO Case No. D2018-0861. As noted in WIPO Overview 3.0, section 3.4, because use of a domain name for per se illegitimate activity such as phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith.

Finally, the current passive holding of the disputed domain name will not prevent a finding of bad faith where, as here, the Respondent hailed to submit a response or provide evidence of actual or contemplated good faith use and the implausibility of any good faith use to which the disputed domain name may be put. See WIPO Overview 3.0, section 3.3.

The Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <arcelonmital.com> be transferred to the Complainant.

Nels Lippert
Sole Panelist
Date: May 12, 2021

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